Justice in Blue and Gray: A Legal History of the Civil War

Many VC readers, I know, have a keen interest in Civil War history. Over at Lawfare, senior national security lawyer at DOD and retired Navy JAG Alan G. Kaufman – who occasionally comments here at Volokh – offers a striking review-essay of Stephen C. Neff’s 2010 book, Justice in Blue and Gray: A Legal History of the Civil War. The book is a fine one, and the review essay also. The review goes on to observe the ways in which the legal questions posed by the Civil War, and many of the answers then given, continue to reverberate today in our conflicts and approaches to counterterrorism. The Civil War remains the “deeper well” of American Constitutional experience in national security. From the opening:

[T]he American Civil War, much like the armed conflicts in which the United States remains involved since the events of 9/11, required that national security strategy and decision making operate “in the dual spheres of criminal law and belligerency.” Today’s questions of combatant status and the fate of unlawful belligerents, debates over executive powers, controversial habeas litigation, struggles over restraints on civil liberties, executive detentions, trials of civilians before military commissions, questions of whether and when to apply domestic criminal law or the international law of war, and, of course, when does the war end and what are the attendant legal consequences – all these questions figured into the law of the Civil War.

Justice in Blue and Gray, A Legal History of the Civil War, by the eminent historian of public international law and the law of war, Stephen C. Neff, is intended as “primarily a case study of the myriad ways in which law plays an important role in a crisis of giant political and military dimensions.” This is a work of serious history by a leading legal historian, not a thinly-veiled parable or historical roman-a-clef for the present; it offers no direct connection to our world today, except by the reader’s own inferences. Still, this legal history offers a not-so distant mirror. Clear and elegant in its language, understandable to the layman as well as to the lawyer, Justice in Blue and Grayshows how law in war can be used – indeed, was used – to accomplish strategic and operational war fighting objectives in a vast and bloody conflict. To use a word Neff does not use (and a somewhat controversial word in today’s parlance), this is a study of law in the Civil War as lawfare. It would be something of an understatement to say that these understandings – both as icon from the past but also source of live legal precedent – are entirely in play in the most recent round of speeches by the Administration’s senior legal officials seeking to explain itself and its justifications in Guantanamo detention, trials, targeted killing, and the targeted killing of Americans. The recent speeches by Attorney General Eric Holder, DOD General Counsel Jeh Johnson, DOS Legal Adviser Harold Koh, and others can profitably be read with this book to hand.

At the level of grand strategy, all lawfare is a battle for legitimacy. To be sure, other objectives – operational and tactical — may flow from that source, but legitimacy is always the underlying and fundamental legal objective. Thus, for the nascent Confederacy, a key initial strategic objective was recognition as a sovereign nation state, and the potentially decisive foreign alliances, particularly with Britain, that could flow from the establishment of that legitimacy. For the Union, an initial strategic objective was to prevent any such recognition and concomitant legitimacy. And so the first and richest chapter of Justice in Blue and Gray discusses the legal arguments surrounding the act of secession by the southern states. Upon the answer to these fundamental legal questions would depend not only whether the secession and a fight either to maintain it by one or to stop it by the other could be held legitimate, but also whether what followed would be law enforcement or war – and thus what measure of violence could legitimately and lawfully be taken by either side to suppress or perfect the secession.